WORKING DOCUMENTS W 110 REVAMPING THE EUROPEAN UNION S ENFORCEMENT SYSTEMS WITH A VIEW TO EASTERN ENLARGEMENT. D.M. Curtin R.H.

WORKING DOCUMENTS W 110 REVAMPING THE EUROPEAN UNION S ENFORCEMENT SYSTEMS WITH A VIEW TO EASTERN ENLARGEMENT D.M. Curtin R.H. van Ooik The Hague, October 2000

REVAMPING THE EUROPEAN UNION S ENFORCEMENT SYSTEMS WITH A VIEW TO EASTERN ENLARGEMENT THE EU ENLARGEMENT SERIES Published titles Eric Philippart and Monika Sie Dhian Ho, The Pros and Cons of Closer Cooperation within the EU; Argumentation and Recommendations, WRR Working Documents no. W104, The Hague (also available in French). A.J.G. Verheijen, Administrative Capacity Development; A Race against Time?, WRR Working Documents no. W107, The Hague. Richard H. Jones, Educating for an Open Society; Higher Education Reform in Central and Eastern Europe as a Catalyst for the Emergence of a Sustainable Democratic Market Economy, WRR Working Documents no. W108, The Hague. Jacques Pelkmans, Daniel Gros, and Jorge Núñez Ferrer, Long-run Economic Aspects of the European Union s Eastern Enlargement, WRR Working Documents no. W109, The Hague. D.M. Curtin and R.H. van Ooik, Revamping the European Union s Enforcement Systems with a View to Eastern Enlargement, WRR Working Documents no. W110, The Hague. 2 Forthcoming Erhard Blankenburg, Legal Culture in Five Central European Countries, WRR Working Documents no. W111, The Hague. Jörg Monar, Enlargement-related Diversity in EU Justice and Home Affairs; Challenges, Dimensions, and Management Instruments, WRR Working Documents no. W112, The Hague. Eric Philippart and Monika Sie Dhian Ho, Pedalling against the wind; Strategies to Strengthen the EU s Capacity to Act in the Context of Enlargement, WRR Working Documents no. W115, The Hague. ISBN 90 346 3868 5

PREFACE PREFACE This study addresses the European Union s legal order with a view to the EU s eastern enlargement. The authors argue that future membership of Central and Eastern European countries will severely strain the application, enforcement and supervision of EU law. This is why they scrutinise and evaluate various possible reforms to mitigate this pressure on the EU s legal order. On the basis of the evaluations, the authors present ways to revamp the European Union s enforcement and supervisory systems. This working document has been written for the project Enlargement of the EU to Central and Eastern Europe, which the Netherlands Scientific Council for Government Policy (WRR) is currently undertaking. As such, it contributes to answering the central questions of this project: to what extent will enlargement increase (disruptive) diversity within the Union, and, hence, to what extent will reform of existing institutions and practices be needed to maintain their effectiveness, legitimacy and cohesion? The authors of this study are Deirdre Curtin, Professor of Law of International Organisations, and Ronald van Ooik, University Lecturer in the Law of International Organisations, both at the Europa Instituut, Utrecht University. Prof. Michiel Scheltema Chairman WRR. 3

CONTENTS CONTENTS Preface 3 1 Background and parameters of the report 9 Part A Legal force of European Union law for CEECs 17 2 Purpose and structure of Part A 19 3 Actual accession as a precondition for the legal force of EU law in the CEECs 21 4 Flexibility as an instrument to avoid incorporation perils 27 4.1 Non-applicability of the existing acquis upon accession 27 4.2 Non-applicability of new acquis after enlargement 28 4.3 Post-enlargement: specific flexibility provisions 30 4.4 General assessment (and sophisticated harmonisation techniques as an alternative) 31 Part B Transposition of EU law into the national legal orders of (new) Member States 37 5 5 Purpose and structure of Part B 39 6 The obligation to bring national law in conformity with EU law 41 7 Possible reforms to the EU system 45 7.1 The choice of the legal instrument 45 7.1.1 What kind of community legislation? 45 7.1.2 A calculated choice of legal instrument under the other EU pillars? 47 7.2 EU assistance to the CEECs legislators 49 Part C Application and enforcement of EU law by national administrative authorities 53 8 Purpose and structure of Part C 55 9 The current state of affairs: decentralised enforcement is the rule 57 10 Centralisation of enforcement tasks? 61

REVAMPING THE EUROPEAN UNION S ENFORCEMENT SYSTEMS WITH A VIEW TO EASTERN ENLARGEMENT 11 Another point of departure: application of EU law by national administrations 65 Part D Supervision of the correct application of EU law 69 12 Purpose and structure of Part D 71 13 EC law and national procedural law 75 13.1 The principle of procedural autonomy 75 13.1.1 Limitations in the Court s case law 75 13.1.2 Legislative limitations 76 13.2 Consequences for the organisation and operation of the CEEC judiciary 77 13.3 Reforms designed to enhance effective judicial protection in the Member States 78 6 14 The national court at work: supervision and application of EU law 81 14.1 Direct effect and supremacy of EC law 81 14.2 Consequences of the principles of direct effect and supremacy for the CEEC judiciary 83 14.3 Possible changes: taking away supervisory tasks from the national judiciary? 84 14.4 The respectful approach: EU assistance to the judiciary of the CEECs 85 14.5 Assessment of the supervisory functions of the CEEC judiciary in an enlarged Union 86 15 Requests for assistance: the preliminary ruling procedure 91 15.1 The current situation: three preliminary reference procedures after Amsterdam 92 15.2 Preliminary references after enlargement 93 15.3 Possible reforms: the restrictive approach 94 15.3.1 Limitation of the national Courts empowered to refer 95 15.3.2 Introduction of a filtering system at the central level? 96 15.3.3 Filtering at the national level 97 15.4 Reforms aimed at strengthening the system of preliminary references 97 15.4.1 Bringing the special reference procedures in line with the general procedure 98 15.4.2 A further de-filtering of preliminary questions? 101 15.4.3 A right of appeal for parties to the main proceedings? 102

PREFACE 15.5 The Court of First Instance and preliminary references 103 15.6 Comments and assessment 105 16 Breach of community law obligations by Member States 113 16.1 Brief analysis of the infringement procedure 114 16.2 The infringement procedure after enlargement 114 16.3 Watering down the infringement procedure 116 16.3.1 No longer compulsory jurisdiction? 116 16.3.2 From judicial to administrative supervision? 117 16.4 Further improvements to the infringement procedure 117 16.4.1 An accelerated infringement procedure? 118 16.4.2 Extension of the infringement procedure to the other EU pillars 119 16.5 Transfer of jurisdiction to the Court of First Instance 120 17 Administrative supervision: serious breaches of fundamental EU principles by Member States 125 17.1 Brief analysis of the supervisory mechanism 125 17.2 The impact on the (new) Member States 127 17.3 Possible reforms: from administrative to judicial supervision? 128 18 General conclusions and recommendations 133 7 List of abbreviations 139

INTRODUCTION 1 BACKGROUND AND PARAMETERS OF THE REPORT At the end of 1999 the Helsinki Summit confirmed, following earlier political statements, that accession negotiations should begin with thirteen candidates, including ten Central and Eastern European Countries (CEECs). 1 The European Council thus blurred the initial distinction made between a leading group of six countries (Czech Republic, Estonia, Hungary, Poland, Slovenia, Cyprus) and another group of six countries which would possibly accede at a later stage (Bulgaria, Latvia, Lithuania, Romania, Slovakia, Malta). 2 This firm political commitment inevitably entails substantial change, both in the candidate states and within the legal and institutional systems of the European Union itself. The reforms required in the Central and Eastern European States are framed by the three criteria laid down by the European Council in 1993 at Copenhagen. These are that membership of the European Union requires: 1 that the candidate state has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, 2 the existence of a functioning market economy, as well as the capacity to cope with competitive pressure and market forces within the Union, and 3 the ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union. 3 9 At a later stage these requirements were worked out in greater detail by the various EU institutions in the process placing numerous very specific obligations on the candidate countries. The first Copenhagen criterion appears to embrace all kinds of political requirements, such as the obligation on Romania to reform its child care institutions. 4 The European Council s dictate to banish Das Kapital meant, inter alia, that the Eastern candidates were (de facto) forced to introduce legislation on such capitalist matters as intellectual property rights and public procurement procedures. 5 The third general criterion ( the ability to take on the obligations of membership ) embraces the obligation for the CEECs to transpose, apply, and supervise the entire body of EU law. In order to perform the requisite incorporation activities properly, it is obvious that the new members should have sound legislative, administrative and judicial entities at their disposal. 6 These hardware requirements can therefore be viewed as part and parcel of the third Copenhagen criterion. In practice, however, the requirement that the CEECs should have sufficient administrative and judicial capacity is seen as an additional fourth criterion. The reason is that it was only at a later stage, at the 1995 Madrid Summit, that the candidate countries were requested to adapt their administrative structures so as to guarantee the harmonious implementation of Community policies after membership. 7 It is however not only the would-be members but also the European Union itself which will have to undergo change in order to be ready for the next enlargement.

REVAMPING THE EUROPEAN UNION S ENFORCEMENT SYSTEMS WITH A VIEW TO EASTERN ENLARGEMENT It is generally recognised that the institutional structures that were created for an economic Community of only six Member States are no longer adequate for a political Union of fifteen states, let alone some twenty-five or even thirty members. 8 With a view to introducing the requisite institutional changes the Intergovernmental Conference (IGC) on institutional reforms was convened at the beginning of the year 2000. The three so-called left-overs from the Amsterdam IGC in 1997 are prominent on the agenda (size and composition of the European Commission, the weighting of votes in the Council of the EU, further extension of qualified majority voting in the Council), as well as other related institutional issues, such as the functioning of the EU Courts (Court of Justice and Court of First Instance), the further extension of the scope of the co-decision procedure in order to strengthen the powers of the European Parliament (including, in particular, the coupling of co-decision with qualified majority voting in the Council), and, perhaps, the splitting of the EU Treaties into two parts. Moreover, it seems that a few political issues will be added to the agenda as well, such as the idea to adopt a Charter on fundamental human rights and the creation of a common defence policy. 9 10 It follows that the distinction made in the Amsterdam Treaty between limited adjustment (in the case of accession of at least one new member) and fuller reforms (where membership of the Union would exceed twenty members) has lost its significance. 10 The new goal is to address all questions relating to the proper functioning of an international organisation that will change fundamentally through enlargement. If no major mishap occurs in the planning, the Treaty of Nice will form the apotheosis of the intergovernmental conference by agreeing on necessary amendments to the Treaties by the end of 2000. 11 Given these crucial on-going developments it is understandable that virtually all the attention in particular in political circles is focused on this process of enlarging the Union. Moreover it is certain that for the next five years or so, the central focus will continue to be directed at the many pre-accession perils. Despite these current realities, this report will not analyse and discuss the problems which may arise during the current pre-accession period. Rather, the focus and thrust of our report relates to the period after the accession of some, if not all, of the countries in Central and Eastern Europe has actually taken place. In this post-accession period which presumably will start somewhere around 2005 it is generally believed that the actual application and enforcement of EU law in the new Member States will constitute one of the major problems. This explains why the theme of our report relates primarily to the issues of application and enforcement of EU law in the post-accession period. More specifically, the report focuses on the extent to which certain structural or endemic problems in the new Member States may force the European Union to adapt or modify its application and enforcement systems.

INTRODUCTION It is not without significance that both the European Council and the Council of Ministers have already emphasised the importance of the matter. They stress that the incorporation of the so-called acquis communautaire into national legislation is not in itself sufficient to ensure that the obligations of membership are fulfilled; the new Member States will also be required to guarantee that this acquis is actually applied according to the same standards as those which apply generally within the Union. The view from the EU is clearly that there is a strong need for incorporating the acquis into legislation and actually implementing and enforcing it. 12 Of course, it can never be expected that it would only be the current fifteen members of the Union which would be required to take the implementation and enforcement of EU law seriously. The crucial point is, however, how such effective implementation and enforcement by the new members should be guaranteed, given the hypothesis that at the time of accession these countries will probably not be able to ensure the full and perfect incorporation of EU law into their national legal orders. Starting from the assumption that the next enlargement will indeed be suboptimal mainly in terms of the administrative capacity of the new members to apply the acquis as a matter of daily practice as well as the capacity of the national judiciary to supervise the application of EU law by administrative authorities, this report purports to go beyond the rather obvious observation that there will be a serious enforcement problem in the accession aftermath. Several suggestions for reform, from the viewpoint of the EU itself and its legal system, will be discussed and analysed. This will include not only ideas which are currently popular in political circles but also ideas which aim at strengthening the Union s enforcement and compliance systems. 11 In order to discuss these issues in a structured manner, a distinction is made between the several phases of what we refer to as the process of incorporation of EU law into the national legal orders of (new) Member States. Incorporation covers different stages relating to the way in which EU law becomes an integral part of a domestic legal order. The first relevant stage of the incorporation process relates to the question whether or not a certain part of EU law has legal force for a (new) Member State. If this is not the case then the subsequent stages of the incorporation process (that is, transformation, application and supervision) do not have to be considered. This means that our attention must first and foremost focus on the question if and how EU law acquires legal force in and for a certain Member State. In this context the issue of flexibility is briefly discussed from the limited perspective of its putative role as an instrument to avoid problems relating to the transformation, application and supervision of EU law in the legal orders of the CEECs (Part A). 13 Once a certain part of EU law has indeed acquired legal force for a given Member State, it is assumed that this Member State has subsequently the legal obligation to

REVAMPING THE EUROPEAN UNION S ENFORCEMENT SYSTEMS WITH A VIEW TO EASTERN ENLARGEMENT incorporate that part (primary and/or secondary EU law) into its national legal order. The other parts of the study (B-D) therefore depart from the assumption that a CEEC is indeed under a legal obligation to give full effect to specific parts of the Union s acquis. With regard to this situation, it is useful to analyse the tasks and roles of Montesquieu s three traditional powers within a state (legislative, administrative and judicial). Part B of the study thus focuses on the role and tasks of the national legislator in the incorporation process. Its central task is to ensure that national legislative provisions are in conformity with EU law. This duty often requires the transposition of EU law provisions into national legislative provisions. Part C concentrates on the role of national administrative organs (national ministries, Competition Boards, et cetera). Very often it is their responsibility to ensure that EU law is correctly applied in daily life, usually vis-à-vis individuals (citizens, entrepreneurs, firms, et cetera). Part D of the study deals with supervisory functions, usually to be exercised by judicial organs. As far as EC/EU law is concerned, both the national courts (at the decentralised level) and the two Courts in Luxembourg (at a central level) perform these supervisory tasks. As we are mainly concerned with (projected) incorporation perils in the CEECs, the focus is on judicial supervision of national acts. 12 Upon closer consideration, it, however, appears that EU law also embraces various forms of what might be called administrative supervision. This form of supervision is not exercised by an independent judicial body (at national or Union level) but by political entities, in particular by the Council of Ministers of the EU. One of these forms of administrative supervision is discussed in greater detail, namely in case of serious and persistent breaches by Member States of certain fundamental principles (Article 7 TEU). The reason is that the Amsterdam Treaty inserted this provision precisely with a view to the next enlargement (although current Member States for example Austria might be subject to this supervisory mechanism as well). The report is structured in the above manner so as to facilitate the central purpose of the study, namely to discuss various possibilities for reforming existing EU enforcement and supervisory systems which may be necessary in view of the coming, unprecedented, enlargement. Most parts of the study follow a similar approach. First the existing legal situation, in a Union of fifteen Member States, is analysed (although rather briefly). The focus is on describing and considering possible reforms to the existing legal situation (for example judicial procedures) which may be necessary in an enlarged Union.

INTRODUCTION If necessary, a distinction is drawn between two different groups of possible reforms: those aiming at a weakening of the present situation (seen from the point of view of effective incorporation and protection of EU law at the national level), and reforms aiming at a further strengthening of existing mechanisms and structures. The study therefore strives towards more objectivity than some of the documents which have been recently submitted by various EU institutions in the framework of the IGC on institutional reforms. 13

REVAMPING THE EUROPEAN UNION S ENFORCEMENT SYSTEMS WITH A VIEW TO EASTERN ENLARGEMENT NOTES 1 Conclusions of the Helsinki European Council (10 and 11 December 1999), Chapter I, point 4. 2 This distinction was still made in, for example, the Commission s Agenda 2000. The missing country, namely Turkey, was only considered to be a potential candidate for EU membership at the Helsinki Summit. The European Council s conclusions are, however, much more reluctant as compared to the intentions regarding the other twelve candidates. The human rights situation and the Turkish occupation of Cyprus continue to constitute the key problems (cf. points 4, 9 and 12 of the Helsinki Conclusions). 3 Bull. C (1993/6), p. 12 (point I.13). 4 See the Second Regular Report from the Commission on Romania, 13 October 1999 (Chapter B.2). 5 See, for example, the Commission s Opinion, First and Second Report on Bulgaria. From the latest report it appears, in any event, that this candidate has made good progress in the two areas mentioned, at least as far as the adoption of formal legislation is concerned. 6 See below for a more precise definition of these terms (transposition, application, supervision, incorporation). 7 See the Madrid conclusions, under III, point A. See also A.J.G. Verheijen (2000), Administrative Capacity Development for EU membership: A Race Against Time?, WRR Working Documents no. W 107, The Hague 8 In this report, the terms European Union (law) and European Community (law) are deliberately distinguished. It is, however, not the purpose of the report to explain once again the complex three-pillar-structure of the post- Amsterdam European Union. On the matter, see e.g. T. Heukels, N. Blokker and M. Brus (1998) (eds.), The European Union after Amsterdam. A Legal Analysis Kluwer. 9 For the Commission s contribution to the discussions, see, in particular, its opinion of 26 January 2000, entitled Adapting the Institutions to make a success of enlargement. See also its earlier contribution of 10 November 1999 (Adapting the Institutions to make a success of enlargement: a Commission contribution to the preparations for the Inter-Governmental Conference on institutional issues). Regarding the idea to reorganise the Treaties, see in particular the Report by R. von Weizsäcker, J. Dehaene and D. Simon, The Institutional Implications of Enlargement, Report to the European Commission, Brussels, 18 October 1999 (Report Dehaene). For the priorities of the Dutch government, see the note IGC-2000: een agenda voor de interne hervormingen van de Europese Unie (TK, 1999-2000, 21 501-20, no. 101, p. 13). 10 See the Protocol on the institutions with the prospect of enlargement of the European Union. Article 1 of this Protocol stipulates that, at the date of entry into force of the first enlargement, the Commission shall comprise one national of each Member State, provided that, by that date, the weighting of the votes in the Council has been modified. According to Article 2 an IGC shall be convened in order to carry out a comprehensive review of the Treaty

INTRODUCTION provisions on the composition and functioning of the institutions, at least one year before EU membership exceeds twenty. See also the critical Declaration by Belgium, France and Italy on this Protocol (OJ 1997 C 340: 111 and 144) and P. VerLoren van Themaat (2000) Enkele problemen voor de komende IGC, NTER 34. 11 See the Helsinki Conclusions, point 15. 12 Helsinki Conclusions, point 11. On the definition of the terms acquis of the Union and acquis communautaire, see paragraph 3. 13 The wider implications of the concept of flexibility are not addressed here as they constitute the subject matter of Eric Philippart and Monika Sie Dhian Ho (forthcoming) Pedalling against the wind; Strategies to Strengthen the EU s Capacity to Act in the Context of Enlargement, WRR Working Documents no. W115. 15

PART A LEGAL FORCE OF EUROPEAN UNION LAW FOR CEECS

PURPOSE AND STRUCTURE OF PART A 2 PURPOSE AND STRUCTURE OF PART A Before discussing the various stages of the incorporation process, it should first be stressed that the CEECs will only be required to transpose, apply and supervise EU law if this body of external law has gained legal force for and in these countries. If not, the incorporation of EU law would be irrelevant, since there would be no formal legal obligation on the CEEC authorities to respect EU law. It is logical therefore in this perspective to pay attention first to the question when and how EU law gains legal force for these countries. It transpires on closer examination that in fact two conditions have to be met. First, quite obviously, these countries should actually join the Union. Assuming that, by the time of accession, the Union has not changed its forms of membership (affiliated, associated, etc.), in principle, all EU law provisions will gain legal force for a new member (paragraph 3). If this first condition is met, then an EU law provision will only gain legal force in a (new) Member State if it is declared applicable to this country. This can be viewed as the second condition and it is in this regard that some attention is given to the issue of flexibility (or: closer co-operation ). Even if it is certainly not the principle objective of this study to analyse the various forms of flexibility, 1 some attention should in our view be given to the relationship between this input issue and the output issue of incorporation. Flexibility may have the concrete consequence that the output (the final EC or EU decision) does not apply to a certain country. It would follow that no problems regarding the incorporation of EU law in the national legal order could arise in these circumstances (paragraph 4). 19

REVAMPING THE EUROPEAN UNION S ENFORCEMENT SYSTEMS WITH A VIEW TO EASTERN ENLARGEMENT NOTES 1 See Eric Philippart and Monika Sie Dhian Ho (forthcoming) Pedalling against the wind; Strategies to Strengthen the EU s Capacity to Act in the Context of Enlargement, WRR Working Documents no. W115. 20

ACTUAL ACCESSION AS A PRECONDITION FOR THE LEGAL FORCE OF EU LAW IN THE CEECS 3 ACTUAL ACCESSION AS A PRECONDITION FOR THE LEGAL FORCE OF EU LAW IN THE CEECS Although one gets the strong impression that the candidates are already bound to assume all EU membership obligations, this is at least from the legal point of view certainly not the case. The Copenhagen criteria, for example, are not legally binding on any of the candidates, as they are embodied in a unilateral document of an EU organ. 1 This is also the case with regard to Commission opinions, White Papers, (regular) Reports and suchlike. At the moment, the only legal obligations on the CEECs can be found in the respective Europe Agreements, since these agreements were concluded with each of the candidates and have actually entered into force. 2 They can be characterised as bilateral agreements, between the EU and its current Member States on the one hand, and one of the ten Eastern candidates on the other. 3 Despite the limited legal rights and obligations for the CEECs contained in these Europe Agreements, one may speak of a much broader de facto obligation for these countries to align their legal systems to almost all EU standards. After all, if the candidates do not take the third Copenhagen criterion very seriously, accession at a later stage seems rather unlikely. Be that as it may, it is only upon actual accession that the entire (existing) body of EU law will formally acquire formal legal force for the CEECs. Although this is not explicitly stated in the EU Treaty, it can be deduced from the fact that the Union recognises only one form of membership, namely full membership. Unlike many other international organisations, the Union does not recognise associated or affiliated memberships. States are either in or they are out. The fact that the Accession Treaties may exempt the new members from certain obligations, does not detract from the general principle that accession to the Union entails the acceptance by the new Member State of all legal obligations. 4 21 The entire body of EU law may also be referred to as the acquis of the Union. Although rather vague, this acquis (of the Union) can be described as all legal rules originating from the Union as a separate legal entity. 5 More concretely, it embraces rights and obligations contained in the EU Treaty, that is, all provisions of the three so-called EU pillars as well as the provisions of the (three) general titles. It further covers the thousands of decisions of the EU institutions, the secondary law of the Union. 6 Last but certainly not least, the existing case law of the EU Courts forms part and parcel of the acquis of the Union. The CEECs, once admitted as new members, will therefore also have to comply with the existing jurisprudence of the Court of Justice and the Court of First Instance, including its case law on such fundamental principles as direct effect, supremacy and state liability. 7

REVAMPING THE EUROPEAN UNION S ENFORCEMENT SYSTEMS WITH A VIEW TO EASTERN ENLARGEMENT Given that the Court s jurisdiction is mainly related to the first pillar of the Union (the EC Treaties), the entire body of case law can also be included, more specifically, within the acquis communautaire. This, often used, term refers to all aspects of traditional European Community law (EC Treaties, secondary Community law, case law of the Court). The term acquis communautaire should therefore be seen as only a part albeit an important one of the broader concept of the acquis of the Union. This distinction emphasises that the newcomers will have to accept existing law in the fields of the Common Foreign and Security Policy (CFSP) and Police and Judicial Co-operation in Criminal Matters (PJCC) as well. 22 It is difficult indeed to predict whether or not this first condition for EU law to gain legal force in the CEECs (whether the CEECs will actually accede to the Union) will ever be fulfilled. Let us just conclude that the actual accession of any new member cannot as yet be taken for granted. Article 49 of the EU Treaty stipulates that the unanimous approval of the Council (that is, in practice, the fifteen Heads of State and Government of the Member States) is necessary. Moreover, the agreement between the current Member States and the applicant State concerning the conditions of admission must be ratified by all contracting States in accordance with their constitutional requirements. In some Member States ratification means that a prior referendum on enlargement of the Union to the East will need to be held. 8 It follows that one sole government, or the majority of the population of just one Member State could block the accession of any CEEC for a long period of time, if not indefinitely. In the past a similar ratification requirement already brought the Union on the brink of an impossible situation when a majority of the Danish population refused to accept the Maastricht Treaty. The main Danish concerns at that time related to the Maastricht provisions on citizenship, foreign policy and - more generally - to the idea of losing too much sovereignty. 9 This time the obligation to accept free movement of persons (with CEEC nationality, including workers and economically inactive persons) may become one of the biggest political issues. Even though the Accession Treaties will certainly provide for long transitional periods, 10 one day after enlargement the movement of workers can no longer be restricted. After all, Article 39 EC explicitly stipulates that freedom of movement for workers shall be secured within the Community. 11 In any event, in high political circles, a strong will exists to expand the Union into a larger political and economic entity. The firm political commitment displayed at the Helsinki European Council has already been referred to. Some years earlier the Madrid European Council stated that enlargement is both a political necessity and a historic opportunity for Europe. 12 And according to the European Parliament there can be no question of delaying the enlargement process, remembering in particular the hardships suffered by Central and Eastern European Countries through more than forty years of dictatorship. 13